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The CMG Voice

When Should A Lawyer Become Involved in Medical/Legal Claim?

Posted Friday, August 29, 2014 by Gene Moen

It is not uncommon to receive a telephone call from a patient who is still in the hospital being treated for a serious condition, or has recently been discharged and is undergoing follow-up treatment. They may have been told by a friend or family member that they should “get an attorney immediately,” so they call you.

The advice I usually give is that it is premature to involve attorneys while they are still receiving care for the injury that was caused by possible medical negligence, whether it was a surgical error, medication mistake, or something else. I tell them to wait until they are “fixed and stable” and the treatment is completed, and then we can obtain all of the medical records and evaluate whether the facts give rise to a viable medical negligence claim.

I explain that, until we know what the long-term damages are, it is difficult to assess whether a claim should be brought. I also explain that if their current treatment doctors think an attorney is involved or a claim is being considered, it may result in the doctor being more cautious about what is put in the records, because doctors don’t like to have to testify in a malpractice lawsuit.

Usually, when I tell the potential client that there is a three-year statute of limitations, they are reassured that nothing needs to be done immediately in order to protect their legal interests. I often tell potential clients that they or family members should keep a simple diary or narrative of what they are going through, since memories will fade.

There are some exceptions to this advice. It is possible there are important fact issues that won’t be clear in the records and an early lawsuit may be needed in order for depositions to be taken while memories are still fresh. Or there may be issues of retaining evidence, such as removed surgical hardware or pathology specimens that need to be preserved. For example, manufacturers tell doctors to send back any failed medical implants or equipment, and an attorney may need to advise the doctor to keep such potential evidence rather than returning it to the manufacturer.

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Study Shows Varying Birth-Related Complication Rates in Hospitals

Posted Monday, August 25, 2014 by Gene Moen

A recent article in HealthDay News described a study that showed wide disparities in the rates of obstetrical complications in hospital across the U.S. The study reviewed outcomes in more than 750,000 deliveries. Surprisingly, in some instances the complication rate varied by up to five times between medical centers.

For example, lacerations from cesarean section deliveries, bleeding problems, and infections occurred at a rate of 21 percent in low-performing hospitals, compared to 4.4 percent in the higher-performing centers. So whether a mother or a child will suffer a birth-related problem at delivery will depend to a large extent on where the delivery occurs.

The study authors are advocating a national quality-reporting system so that repeat problems as well as “best practices” can be identified, and can be used as a tool to improve quality in the lowest-performing medical centers. They noted that the American College of Obstetricians and Gynecologists, in conjunction with the American Society of Anesthesiologists, are developing such a plan.

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CMS stops reporting serious hospital errors to the public

Posted Thursday, August 21, 2014 by Tyler Goldberg-Hoss

The Centers for Medicare and Medicaid Services (CMS) used to allow the public access to data it tracked on the incidence in hospitals of a number of “hospital acquired conditions” (HACs). This data includes things such as the surgical malpractice of foreign bodies left in patients following surgery, the negligent medication administration that results in air embolisms in patients’ venous systems that can kill, and giving patients the wrong blood types.

No more. Recently and quietly, CMS decided it would stop reporting 8 conditions (including the above) that often constitute nursing malpractice, systemic hospital malpractice, or prescription and drug errors, while continuing to allow the public to see its data on 13 other conditions, including infections such as MRSA and sepsis after surgery.

This information is useful to patients and patient advocates who want to compare hospitals before deciding on where they get their care. But the CMS sees it differently: the 8 dropped conditions are so called “never” events that should not happen in hospitals. They say it makes the events harder to track, leading to this change in disclosure. But conversely, isn’t it those sorts of events patients would want to know about in deciding where to get their care?

We live in a society where patients are more and more educated and involved in where they consume their healthcare. Just like buying a car, consumers want to be able to compare their healthcare options on a number of factors, including not only cost but safety as well. The argument from the CMS that this data is so unreliable as to “defeat the purpose” of transparency rings hollow. Why not allow access to the data with caveats for how the data was obtained, while simultaneously working with hospitals to ensure better data in the future?

You can read the USA Today article on this lack of disclosure here:

Feds stop public disclosure of many serious hospital errors

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Settlement Confidentiality in Medical Malpractice Cases

Posted Monday, August 18, 2014 by Gene Moen

In most settlements of medical negligence cases, the defendant and her/his insurance company want confidentiality. The settlement agreement specifies that the details of the settlement, including the names of the parties and the settlement amount, cannot be disclosed to anyone other than family members or financial advisors.

Defendant health care providers want confidentiality because they don’t want the claimant to be able to publicly disclose that the provider has paid a substantial amount to settle a malpractice case. The insurance carriers like confidentiality because it doesn’t allow other plaintiff’s attorneys to know how much was paid for a particular injury.

In some cases, plaintiffs also like confidentiality because it allows them to fend off nosy people who want to know “how much did you get?” It is always easier to say “I can’t tell you, because it is confidential.” Regardless of confidentiality, however, the insurance companies are required to report settlement both to the state agency that licenses doctors (if the settlement is for more than $20,000) and to the federal practitioner’s data bank (for any amount paid in settlement).

Most plaintiff attorneys do not like confidentiality. It means you can’t discuss the settlement with other attorneys and, if it is a large settlement, you can’t publish the results in legal publications. Most malpractice attorneys rely a great deal on referrals from other attorneys, and you want those attorneys to know about the complex or larger cases you are handling. It also allows a defendant, even in egregious cases of negligence, to hide the settlement from public scrutiny.

In some cases, the provider and insurance company will allow a “confidential” report of the settlement to be published, with the identities of the parties and the defense attorneys not reported. Those reports can include a detailed description of the medical and legal issues in the case, as well as the amount of the settlement.

There have been legislative attempts to eliminate confidentiality, on the basis of the public’s need to know about medical claims and their settlements, but so far they have not been successful. Newspapers occasionally run stories about cases that were “hidden” from the public through confidentiality provisions, but that has so far not led to legislation to eliminate the practice.

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12 million misdiagnoses a year in the U.S.

Posted Friday, August 15, 2014 by Tyler Goldberg-Hoss

Every day, our office fields calls from potential medical malpractice claimants. Often, the complaint is that the doctor misdiagnosed the patient, and harm occurred as a result. Our experience is that misdiagnoses are common, though often they don’t reach the level of malpractice. These cases often turn on a clinician’s judgment: whether, with the evidence presented at the time, it was reasonable to choose the diagnosis or path that the doctor did.

Usually, doctors win those cases. In fact, there is a jury instruction in Washington that states a doctor is not liable if he or she makes the wrong decision, so long as the decision-making process itself was reasonable. And we all can understand the compelling argument that only with the benefit of hindsight – and the knowledge of a catastrophic outcome – could anyone have predicted what in fact happened.

Still we get those calls regularly. As a medical malpractice attorney, I understood that only people with problems with medical care would call me for advice. But I had no idea of the magnitude of this problem.

A recent study published in the journal BMJ Quality and Safety by Dr. Hardeep Singh and others estimate that doctors make misdiagnoses about 5% of the time; meaning approximately 12 million Americans are misdiagnosed every year. Wow.

Read an article written by Dr. Singh about his findings here:

The Battle Against Misdiagnosis

As mentioned above, a misdiagnosis alone does not make for a valid malpractice claim. Still, some of the potential solutions outlined in the article give a window into facts that explain how misdiagnoses can occur.

Many of us who consume health care resources, or who have loved ones who do, understand that often doctors don’t have enough time to effectively communicate with patients. Not having enough time with a patient listening to the history of their symptoms can start a doctor off on the wrong path. This is often not the doctor’s fault alone, as there are time pressures that force him or her to over-schedule patients.

Dr. Singh also cites the problems associated with moving health records to all electronic format. My partner Gene Moen recently wrote two blog posts on the subject. You can read them here:

Technology and Patient Safety

and here:

Concerns about electronic medical records are increasing

Finally, Dr. Singh puts some onus on patients themselves, which is a tactic typical in almost any medical malpractice jury trial. Patients are held to a high standard with respect to the actions and decisions they make with their own health care. Dr. Singh suggests patients take good notes from each doctor visit, and bringing that information to subsequent providers to allow for continuity of care. Because as it stands, the health care industry is dropping the ball at an alarming rate.

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Chemnick | Moen | Greenstreet
115 NE 100th St #220, Seattle, WA 98125 US
Phone: 206-443-8600
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